Ramsay & Anor v Wingecarribee Shire Council

Mr B Bilinsky Solicitor (Respondent) Bilinsky & Co File Number(s): 10750 of 2011

Ex tempore Judgment This determination was given extemporaneously and has been edited prior to publication .

Introduction 1This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979, (Act) against a development consent (LUA 11/10142) issued by the respondent, Wingecarribbee Council for the subdivision of land at 416 Berrima Road, Moss Vale (the land). 2The consent approves the subdivision of the land into two allotments and the construction of a private access road from Berrima Road through Lot 100 connecting to Lot 101. Lot 101 will benefit from a right of carriageway over Lot 100. 3The applicant seeks to retain the consent for the subdivision but wants conditions 9, 11,14 and 21 to be deleted. It contends that those conditions cannot be imposed under s 80A(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act), because they do not relate to the impacts of the development and/or are unreasonable. The council argues to the contrary. 4The appeal was heard at Picton Courthouse and expert town planning evidence was received from Mr Malloy for the council and Ms Pinkerton for the applicant. Their joint report is Exhibit C. 5The conditions in dispute are set out below: 6Condition 9 - subdivision certificate In accordance with Section 109J of the Environmental Planning and Assessment Act 1979 an application for a subdivision certificate along with the linen plan suitable for lodgement with the Land and Property Information NSW plus (8) copies and relevant other documentation, shall be made on the completion of works and the relevant application fee paid. All works specified in Council's' development consent and approved construction certificate plans shall be completed and all development consent conditions complied with prior to making a subdivision certificate application. The linen plans of subdivision shall be accompanied by a section 88B restriction under the Conveyancing Act 1919 requiring that the land in the north west corner of the site, generally as indicated by the cross hatched area shown on A4 plans marked "A" attached to this consent notice shall be set aside for future roadworks, with Wingecarribee Shire Council nominated as the authority empowered to release vary or modify the restriction. 7Condition 11- Future Industrial Development and Access provides: Depending upon the scale of a future proposed industrial development of the site, the private road/right of carriage way and junction with Berrima Road approved with this 2 lot subdivision may not be sufficient to adequately cater for such a future industrial development. Therefore depending upon the scale of the future industrial development of the site, a future DA for the industrial development could be approved subject to a new road access to a roundabout in the north western corner of the site, and the removal of the private road/right of carriageway and junction with Berrima Road approved by this 2 lot subdivision. 8Condition 14 provides: A legally binding instrument (Section 88B Conveyancing Act) shall be prepared in consultation with, and to the satisfaction of the Council for each allotment identified as affected by flooding in: (a) the contour survey plan and calculations Reference No: 201450 prepared by Richard Anderson and dated 6 April 2011. 9Conditions 21 provides: Where any part of any allotment created is within the 15 AEP flood an appropriate Restriction as to User shall be crated on the title of that lot. The works as executed plans and title document shall state the 1% AEP flood level and the minimum finished floor level for that allotment. The finished floor level is to be minimum of 500mm above the 15 AEP flood level. 10The statement of agreed facts and contentions filed by the applicant on 21 September 2011 records the relevant facts as follows: 11The land is part of the Moss Vale Enterprise Corridor (MVEC) and is zoned IN1 General Industrial under Wingecarribee Local Environmental Plan 2010 (LEP). It is also subject to the Moss Vale Enterprise Corridor Development Control Plan (DCP). 12It comprises a single allotment of 51.68 ha and is situated on the eastern side of Berrima Road, Berrima. It has a frontage of 240 m to Berrima Road. This is the only access to the site. Vehicular access is presently from Berrima Road from the south via an access easement over the southern adjoining site owned by Ingham Enterprises Pty Ltd. 13The site is bisected by Stony Creek, which is a perennial creek that runs from north to south through the site. 14The site is currently used for agricultural purposes and is substantially cleared, with small pockets of tree strands primarily on the eastern side of Stony Creek. 15On its northern boundary the site adjoins an access road to a quarry, which is being developed under pt 3A of the Act. 16The only improvements on the land are Chesley Park homestead and associated structures, an unsealed road and dam. 17There is not dispute about the fact that the development is permissible with consent, or that the land has the potential to be developed for a wide range of industrial and warehouse land uses. 18An objective of the IN1 General Industrial zone is: " To ensure that new development and land uses incorporate measures that take account of their spatial context and mitigate any potential impacts on neighbourhood amenity and character, or the efficient operation of the local or regional road system ". Council relies on this objective to justify the imposition of the conditions at issue under s 80A(1)(a) of the Act. It contends that it is in the public interest and the orderly and economic development of the land to impose the conditions. 19I will group the conditions by subject and deal with them consecutively.